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[2025] NSWSC 1143
General information, not legal advice.
Supreme Court of NSW
2025-10-10
Williams J
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Medium Neutral Citation: Chie v Veale [2025] NSWSC 1143
Hearing dates: 2-3 June 2025
Date of orders: 10 October 2025
Decision date: 10 October 2025
Jurisdiction: Equity – Probate and Family Provision List – Family Provision
Before: Williams J
Decision: See orders at [85]
Catchwords: SUCCESSION – family provision – claim by adult son for further provision out of the estate of his deceased mother – where deceased’s estate is comprised of real property, a motor vehicle and a small amount of cash – where deceased made a will leaving the real property and motor vehicle to one of her four children (John) and leaving the cash to her other three children – where the deceased’s will provided that, if John predeceased her, the real property was to be sold and divided between her other three children and John’s children – where John died intestate some four months after the deceased – where John’s wife, from whom he separated several years before his death, has a statutory entitlement to a statutory legacy and half of the remainder John’s intestate estate – where the plaintiff (David) seeks an order for further provision out of his deceased mother’s estate – where the claim is opposed by John’s estranged wife – whether the circumstances and needs of John’s estranged wife are relevant to the determination of the plaintiff’s claim
Legislation Cited: Succession Act 2006 (NSW), ss 57, 59, 60, 65, 106, 113, 127
Cases Cited: Blendell v Byrne [2019] NSWSC 583
Blendell v Blendell [2020] NSWCA 154
Camernik v Reholc [2012] NSWSC 1537
Chapman v Ingold [2015] NSWSC 1604
Estate of the Late Violet Eugenie Harrigan – Cowmey v Whibley [2012] NSWSC 291
Keaton v Gumulak [2020] NSWSC 943
Megerditchian v Khatchadourian [2020] NSWCA 229
Nicholas v Nicholas [2013] NSWSC 697
Rakovich v Marszalek [2020] NSWSC 589
Scott v Scott [2022] NSWCA 182
Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297
Texts Cited: N/A
Category: Principal judgment
Parties: David Keith Chie (Plaintiff)
Maria Victoria Veale (Defendant)
Representation: Counsel:
Ms M Tibbey (Plaintiff)
Ms M Pringle (Defendant)
Solicitors:
Williamson Isabella Lawyers (Plaintiff)
McAneny Lawyers (Defendant)
File Number(s): 2023/430153
Publication restriction: Nil
The late Charmaine Mary Joan Chie died on 29 November 2022 at the age of 88 years. During her lifetime, the deceased was known by the name “Shirley”.
Shirley was survived by John William Veale, who was one of two children of her marriage to John Rexford Veale, and by David Chie and Marilyn Corish, who are the two children of her subsequent marriage to Peter Chie. Another child of the deceased’s first marriage, Diane Veigel, died on 1 August 2017 and is survived by her partner Janice Fay Hennessy (known as “Fay”).
John William Veale died intestate on 4 March 2023. He is survived by his wife, Maria Victoria Veale (known as “Vicky”), from whom he had been separated some years earlier, his three children with Vicky (Benjamin Matthew Veale, Cassandra Lee Veale and Sheree Jane Veale), and his two children from an earlier marriage (John David Veale and Jason Russell Veale).
In these reasons, I will adopt the parties’ convention of referring to the deceased as “Shirley” and referring to all other persons by their first name or by the name by which they are known. No disrespect is intended.
By her last will made on 4 December 2008, Shirley appointed her sons John and David as her executors. Shirley gave to her son John her caravan and her house at 25 Park Road, Bulli, including the contents. Shirley gave “any monies that I may have to my daughters Diane May Veigel and Marilyn Judith Corish + son David Keith Chie”. The will further provided that, if John predeceased Shirley, then “the house be sold + shared between Diane May Veigel, Marilyn Judith Corish + David Keith Chie + John William Veals [sic] share is to be with his children John William Veale [sic], Jason Russel Veale, Benjamin Mathew Veale, Cassandra Veal**, Sheree Veal*”*.
The Bulli property is valued at approximately $1,995,000. The caravan is valued at approximately $4,000. Shirley left cash totalling $43,915.
These proceedings were commenced by David and Marilyn, each of whom claimed an order for further provision out of the deceased’s estate pursuant to s 59 of the Succession Act 2006 (NSW).
Marilyn subsequently withdrew her claim.
In view of his claim against the estate, David renounced his right to probate of Shirley’s last will in January 2023.
Vicky has applied for a grant of letters of administration in respect of Shirley’s estate on the basis that she is the widow of John, who was named as an executor in Shirley’s will but who died four months after Shirley passed away. At the time of the hearing of these proceedings, Vicky’s application had not been determined.
As a child of Shirley, David is an eligible person who may apply for a family provision order: Succession Act, s 57(1)(c).
The Court may make a family provision order in favour of David if it is satisfied at the time of considering the application that Shirley’s will has not made adequate provision for his proper maintenance, education or advancement in life. If so satisfied, the Court exercises an evaluative discretion whether to make any provision order in favour of David and, if so, to determine the nature and amount of the provision that the Court thinks ought to be made for his maintenance, education or advancement in life having regard to all of the facts known to the Court at the time the order is made: Succession Act, s 59; Megerditchian v Khatchadourian [2020] NSWCA 229 at [52] (Payne JA, Macfarlan JA and Emmett AJA agreeing).
The Court’s approach to evaluating whether adequate provision has not been made was described by Meagher JA, with the agreement of Ward P and Kirk JA, in Scott v Scott [2022] NSWCA 182 at [12]-[16]:
“12. The question posed by s 59(1)(c) is whether ’adequate provision for the proper maintenance, education or advancement in life’ of the claimant ’has not been made by the will of the deceased person’. In Singer v Berghouse at 210, the plurality (Mason CJ, Deane and McHugh JJ) described this question as being ’strictly one of fact, notwithstanding that it involves the exercise of value judgments’, and continued:
The evaluative character of the decision stems from the fact that the Court must determine whether the applicant has been left without adequate provision for his or her proper maintenance, education or advancement in life.
- Earlier at 209-210, in a passage cited with approval by Gummow and Hayne JJ in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [75], the plurality said of the equivalent jurisdictional question in s 9(2) of the Family Provision Act 1982 (NSW):
The difference between ‘adequate’ and ‘proper’ and the interrelationship which exists between ‘adequate provision’ and ‘proper maintenance’ etc. were explained in Bosch v Perpetual Trustee Co. [1938] AC 463 at 476.). The determination of the first stage … calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
- In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19; [1962] HCA 19, Dixon CJ said of the words ’adequate’ and ’proper’ which he noted ’must always be relative’:
The ‘proper’ maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is ‘adequate’ must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions.
- In the present context, two further matters should be emphasised. First, as White JA said in Sgro v Thompson [2017] NSWCA 326 at [71], in addressing the jurisdictional question:
An applicant’s financial needs and the financial needs of other persons with claims on a deceased’s testamentary bounty are important, and often highly important considerations, but as Basten JA said in Chan v Chan [2016] NSWCA 222 at [22]: ’…[I]t is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs.’
- Secondly, also in Sgro v Thompson at [6], Payne JA agreed with White JA that while the Court’s assessment of what is proper maintenance, education and advancement in life must be made at the time when the Court is considering the application, ’that does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate’. The authorities cited in support of that principle include Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127], in which White J (as his Honour then was) said:
The deceased will have been in a better position to determine what provision for a claimant’s maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased’s death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator’s testamentary wishes in recognition of the better position in which the deceased was placed. (emphasis added)”
Section 60(2) of the Succession Act sets out matters to which the Court may have regard for the purpose of determining whether it is satisfied that adequate provision has not been made for the proper maintenance, education or advancement in life of the claimant, as well as in deciding whether to make any order for provision and, if so, the nature and amount of the provision to be made. Relevantly to the present case, those matters include:
the nature and duration of David’s relationship with Shirley (s 60(2)(a));
the nature and extent of any obligations or responsibilities owed by Shirley to David, and to each other beneficiary (s 60(2)(b));
the nature and extent of Shirley’s estate (s 60(2)(c));
the financial resources, earning capacity, and present and future financial needs of David and each beneficiary (s 60(2)(d));
the financial circumstances of David and any person with whom he cohabits (s 60(2)(e));
any disability of David or any beneficiary of Shirley’s estate that is in existence when the application is being considered or that may reasonably be anticipated (s 60(2)(f));
David’s age (s 60(2)(g));
any financial or non-financial contribution made by David to Shirley’s welfare or to her estate (s 60(2)(h));
any provision that Shirley made for David during her lifetime or from her estate (s 60(2)(i));
any evidence of Shirley’s testamentary intentions, including evidence of statements made by her (s 60(2)(j));
whether any other person is liable to support David (s 60(2)(l));
David’s character and conduct before and after Shirley’s death (s 60(2)(m)); and
any other matter the Court considers relevant, including matters in existence at the time of Shirley’s death and matters in existence at the time David’s application is being considered (s 60(2)(p)).
The Court has regard to the interests of the beneficiaries as they are the chosen objects of Shirley’s testamentary bounty, each of whom has a claim to the estate that is in competition with David’s claim for a family provision order. The Court will have regard to the financial circumstances and needs of the beneficiaries to the extent that they are disclosed. If they are not disclosed, this may provide a proper basis for the Court to infer that the beneficiaries have sufficient income and resources to meet their needs. The competing claims of those beneficiaries are nevertheless to be taken into account in evaluating what is “proper” in all the circumstances of the case. In this way, the Court gives due regard to the fact that Shirley regarded the beneficiaries as having superior claims to the applicant, or regarded her gifts to the beneficiaries as preferable dispositions of her estate: , ss 60(2)(b), (c), (d) and (f); [2019] NSWSC 583 at [113]–[118] and the authorities there referred to; [2020] NSWSC 943 at [14]-[18] and the authorities there referred to.
“‘In relation to a claim by an adult child, the following principles are useful to remember:
(a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.
(b) It is impossible to describe in terms of universal application, the obligation, responsibility, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation.
(c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child’s life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death if he or she is able to do so. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute.
(d) If the applicant has an obligation to support others, such as a parent’s obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant …
(e) There is no need for an applicant adult child to show some special need or some special claim.
(f) The adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased.
(g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim.’ (Citations omitted.)”
While both of his parents were alive, David visited his parents about once a fortnight, and took his wife and children to see them about once a month, after working long shifts six days per week. After David’s father passed away in April 2001, John and his wife Vicky moved into the Bulli property, together with their children, at Shirley’s invitation. David found it difficult to visit Shirley at the Bulli property thereafter, as he and John do not have a close relationship and it felt to David like he was intruding in John and Vicky’s home. David nevertheless persisted in visiting, and took Shirley birthday and Christmas presents. David also spoke with Shirley by telephone. David and his wife Michelle invited Shirley to visit them at their home in Albion Park on many occasions, but Shirley only visited there twice in the 30 years they lived there. David gave evidence that Shirley “always had an excuse not to come”. David found it difficult that Shirley continually talked about John and his family, without showing much interest in David and his family. This caused David to cease contacting Shirley, John and Vicky for a period of 12 months in about early 2021. However, David reached out and re-established contact in about early 2022, and began to visit Shirley at the Bulli property every couple of months, notwithstanding that she continued to be preoccupied with John and his family. Shirley was in and out of hospital during the last 10 years of her life, and David visited her about every second day during those hospital stays. His last visit with her was on the morning of the day on which she died.
I accept David’s evidence, which was not challenged in cross-examination and which is consistent with the evidence given by Marilyn and Fay. As counsel for David submitted, that evidence establishes that David was a good son who did his best to maintain a good relationship with his parents, and with Shirley after this father’s death, and who tried to make his relationship with Shirley work despite the difficulties created by her favouritism towards John. Counsel for Vicky eschewed any submission to the contrary at the conclusion of the hearing, notwithstanding that Vicky had vehemently denied under cross-examination that David had visited Shirley and maintained a good relationship with her throughout his adult life. It is inherently improbable that Vicky was able to keep such close tabs on Shirley’s life as she claimed to have done in order to give such an account of the alleged lack of contact between Shirley and David. I formed the impression from her demeanour and from her aggressive tone of voice when answering questions about the relationship between Shirley and David that Vicky was determined not to give any answer that might reflect favourably on David. That raises questions about Vicky’s credibility as a witness generally, and causes me to treat all of her evidence cautiously.
David does not claim to have made any financial contribution to Shirley’s welfare or assets during her lifetime.
David is 68 years of age.
One of David’s arms does not function normally and he does not have fingers on the hand on that arm. David attributes this to being affected by thalidomide when he was in the womb. This has caused some difficulties for David in obtaining employment throughout his adult life. Despite those difficulties, David has been employed throughout his adult life.
At the time of the hearing, David had been working as a truck driver for transport company MJ Rowles since 18 November 2024, after his position as a truck driver for Baines Transport had been made redundant with effect from 31 October 2024. David had earned an hourly rate of $36 driving for Baines Transport. His hourly rate driving for MJ Rowles was $31. His net weekly income varied between $850 and $1300, depending on the amount of work available for him each week. That income barely covers his expenses of about $5,000 per month. [3] Cross-examination about those expenses established nothing more than that David could probably purchase his various medications more cheaply at Chemist Warehouse.
In his affidavit affirmed on 2 May 2025, David deposed that he had received a redundancy payment from Baines Transport capped at 12 weeks’ pay before tax, totalling $16,174.32. A schedule of entitlements on Baines Concrete letterhead annexed to David’s affidavit recorded an entitlement to five weeks’ notice and a redundancy payment of $16,174.32 reflecting 12 weeks’ pay. However, bank statements annexed to that same affidavit record that David received a payment from Baines Transport on 6 November 2024 of $93,291.84. The following day, $90,000 of that sum was transferred from David and Michelle’s joint savings account to a Commonwealth Bank account. Although this payment was disclosed in bank statements annexed to David’s affidavit, he did not explain the reason for the payment other than to say that it is the subject of dispute with Baines Transport because they consider that they overpaid him by five weeks. As counsel for David acknowledged in closing submissions, five weeks’ pay could not account for the discrepancy between the redundancy payment of $16,174.32 and the payment of $93,291.84. Counsel for David submitted, and I accept, that the Court should proceed on the basis that he is entitled to retain the $93,291.84 payment from Baines Transport, save for a relatively small proportion of it equivalent to five weeks’ pay which he may be required to pay back.
David and his wife Michelle jointly own their home at Albion Park, which is unencumbered. In his affidavit affirmed on 19 February 2024, David estimated that the value of the home was approximately $600,000. Under cross-examination, David readily acknowledged that $600,000 was merely his own estimate of what his home was worth, and he had not obtained a market appraisal from a real estate agent. David did not disagree with a recent market appraisal of $830,000 that was obtained on behalf of Vicky and put to him during cross-examination. However, as counsel for David submitted, that agent’s view about the likely selling price of the Albion Park property is somewhat unclear because the appraisal merely expresses an opinion about the price at which the Albion Park property could be advertised for sale in order to “”. I proceed on the basis that the value of the Albion Park property is more than $600,000 and may be as high as $830,000.
As I have already mentioned, following John’s death, his intestate estate is the primary beneficiary of Shirley’s estate. The burden of any order made in favour of David for provision out of Shirley’s estate will fall on John’s estate and, therefore, on his five children and Vicky as the persons entitled to his estate.
Vicky is the administrator or John’s estate. Vicky did not adduce any evidence of the value of John’s estate, or of the assets constituting that estate other than the gift made to John under Shirley’s will.
As the spouse to whom John remained married at the time of his death, notwithstanding their separation some years earlier, Vicky is entitled to John’s personal effects, a statutory legacy calculated in accordance with s 106 of the Succession Act, and to one half of any remainder of John’s estate after payment of that statutory legacy: Succession Act, s 113. John’s children are entitled to the other half of the remainder (if any): Succession Act, s 127. Counsel for Vicky was vague about the amount of the statutory legacy, but submitted that it would amount to at least $550,000. On that basis, and assuming (without deciding) that John’s intestate estate has no assets other than what it receives under Shirley’s last will, and treating the Bulli property valued at $1,995,000 as comprising substantially the whole of Shirley’s estate, Vicky would be entitled to approximately $1,272,000 from John’s intestate estate if no order for family provision were made in favour of David in these proceedings. In that assumed scenario, Shirley’s estate would be the sole source of the benefit received by Vicky through her estranged husband’s intestate estate.
Vicky gave evidence that, in her capacity as the administrator of John’s estate, she settled a claim made by his son Jason on terms that require John’s estate to pay Jason the sum of $257,500 in lieu of his entitlement on intestacy. Vicky did not adduce any evidence in these proceedings of Jason’s circumstances giving rise to his claim against John’s estate and informing the terms of that settlement. There is no evidence that the settlement with Jason will reduce the amount that Vicky would otherwise receive from John’s estate in accordance with her statutory entitlement to the statutory legacy and half of what remains after payment of that legacy: Succession Act, s 65.
In her capacity as the representative of Shirley’s estate for the purpose of these proceedings, Vicky gave notice of David’s claim to her three children that she had with John, and to John’s two children from his first marriage. None of them has put evidence of their financial circumstances before the Court. All that is known of them is that John’s two sons from his first marriage (John and Jason) are now aged 51 and 48 years, and Vicky’s three children with John are aged 35 years (Benjamin), 33 years (Cassandra), and 25 years (Sheree).
Vicky adduced evidence of her own financial circumstances and needs. David objected to that evidence on the grounds of relevance because Vicky is not a direct beneficiary of Shirley’s estate and did not make a claim for provision out that estate. I have determined that Vicky’s evidence is relevant for the reasons explained at [18]-[19] above.
Vicky is now 53 years old.
Vicky gave evidence that she moved from the Philippines to Australia to be with John in May 1988 and they were married in August 1988. I note that Vicky would have been only 16 years old at that time, but her evidence about the date of her marriage was not challenged. Vicky and John lived at the Bulli property from 1988 to 1991, and had their three children in December 1989, January 1992 and November 1999.
In her affidavit affirmed on 19 March 2024, Vicky deposed that she had a “typical mother-daughter relationship” with Shirley, that they spent most days together, helped each other around the house, cooked together, took walks, rode their bikes together and generally enjoyed one another’s company. In cross-examination, Vicky acknowledged that bike riding and walking was something that she and Shirley did together only once or twice very soon after Vicky arrived in Australia in 1988, rather than part of the pattern of their relationship.
As I have already mentioned, Vicky and John and their children returned to the Bulli property to live with Shirley shortly after Peter died in April 2001. They lived there without paying rent, although they paid or contributed to paying some expenses related to the property. In her affidavit affirmed on 19 March 2024, Vicky described the arrangement as one that provided her and John with accommodation, and provided Shirley with company and carers. David gave evidence disputing that Shirley required carers, but acknowledging that she had invited John and Vicky to live with her because she did not like to live alone. Marilyn also gave evidence disputing that Shirley required care. According to Marilyn’s evidence, it was not until the last three years of Shirley’s life that she slowed down and required some care and assistance in the home, which was provided by John. Marilyn was not required for cross-examination. I prefer the evidence of Marilyn and David, and reject Vicky’s evidence that Shirley required carers in 2001.
According to Vicky’s evidence, John worked as a boilermaker until 2017, when he retired due to health problems, including throat cancer.
Between about 2002 and 2007, Vicky worked as a night filler at Woolworths, earning approximately $300 net per week. From 2007, she began working as a cleaner for NSW Health at Bulli Hospital on a casual basis and also cleaned private homes on her own account. Between those two jobs, Vicky’s net earnings were between about $800 and $900 net per week.
The Bulli property passed to Shirley after Peter Chie passed away in April 2001. Shirley informed Diane, Marilyn and David that she intended to leave the property to John. According to Marilyn’s and David’s evidence, they and Diane felt that this was unfair.
In her affidavit sworn on 5 February 2024, Marilyn deposed that she had a conversation with Shirley about two months before her death, in which Shirley told her that she had no money left and that the house was going to John. Marilyn told Shirley she thought this was unfair, and Shirley replied: “That*’s the way it is and I am not going to discuss it further”. Marilyn then asked Shirley: “What about Vicky?” Shirley replied: “Vicky is to get nothing and I have changed my will to reflect this.*” Marilyn was not required for cross-examination, and I accept her evidence.
There is no evidence that Shirley changed her will at about the time of this conversation. As I have already mentioned, Shirley’s last known will was made on 4 December 2008. Shirley wrote that will herself and, as counsel for David submitted, it is clear from its terms that she did not intend to benefit Vicky, directly or indirectly. The will provided that, if John predeceased Shirley, the Bulli property was to be sold and the proceeds divided in four shares, with one share to go to each of Diane, Marilyn, and David, and the fourth share to go to John’s five children. Shirley probably did not foresee the events which have occurred, in which John survived her but died before probate of her estate had even been granted, and Vicky has a statutory entitlement to part of his estate notwithstanding that she and John separated five or six years prior to his death.
David has undertaken physically demanding work throughout his adult life to support himself and his family. That work is now taking a toll on his body and, at the age of 68 years, he would like to retire rather than continue working through debilitating hip and shoulder pain. I accept that, with superannuation and other entitlements of approximately $350,000 [4] and taking into account Michelle’s superannuation and savings of approximately $94,000, David does not have sufficient funds to retire and adequately provide for himself and Michelle. That is all the more so when account is taken of his commitment to repay $100,000 to Fay, and his need for funds to repair the Albion Park property. That property is a significant asset, but there was no suggestion that suitable alternative accommodation could be purchased at a lesser price if the Albion Park property were sold in order to release further funds for David and Michelle’s retirement. Even if David were to retire now, he would have no contingency fund for medical expenses (which are likely, given his age and the nature of his existing health conditions) or to protect him against the ordinary vicissitudes of life. It is my opinion David has a genuine need for some funds to afford him a less frugal retirement and for a contingency fund to provide him with some protection against insecurity arising from future ill health as he ages and against unforeseen life events. I accept the submissions made by counsel for David to that effect. I reject the submissions made on behalf of Vicky to the contrary, which elided the need for David to fund his and Michelle’s retirement and the need for a contingency fund. It is my opinion that the community would expect a parent to provide her son, with whom she had a good and close relationship, with some buffer against such contingencies. For those reasons, I find that Shirley’s last will did not make adequate provision for David’s proper maintenance, education and advancement in life.
The burden of any provision ordered in favour of David will fall on John’s estate and, indirectly, principally on Vicky, on whom Shirley intended to confer no benefit under her last will. Vicky had the benefit of rent-free accommodation provided by Shirley for many years, has no dependents and has been supporting herself financially since 2017, and is working in a job that she expects to be able to continue in until retirement in approximately 12 years’ time. Due to the absence of any evidence of the value of John’s estate (other than the value of the gift to John in Shirley’s last will), the Court is unable to assess the full value of John’s estate from which Vicky has a statutory entitlement to benefit. As I have explained earlier in these reasons, Vicky will receive approximately $1,272,000 from John’s estate if no family provision order is made in David’s favour, subject to the unknown impact (if any) of the settlement she entered into with Jason Russell Veale in respect of John’s estate.
For all of the reasons at [81]-[82] above, I consider that the amount of the provision that is proper for David’s maintenance, education and advancement in life is $450,000, which will enable him to retire in the near future and spare him the need to continue working through painful injuries, afford him a more comfortable retirement, and provide him with a buffer against future medical expenses and the vicissitudes of life. I note that, insofar as I am able to ascertain from the evidence adduced in these proceedings, this will leave Vicky and John’s children with considerable funds from John’s estate, even after taking into account the costs of these proceedings. I do not consider that the community would consider the burden on John’s estate (and, indirectly, on Vicky and on John’s children) as supporting no order for provision in favour of David, or an order for provision in a lesser amount, in all the circumstances of this case.
For all of the foregoing reasons, the orders of the Court are as follows:
Order pursuant to s 59 of the Succession Act 2006 (NSW) that further provision be made out of the estate of the late Charmaine Mary Joan Chie (the deceased) for the maintenance, education and advancement in life of the plaintiff David Keith Chie in the sum of $450,000, to be paid out of the property at 25 Park Road, Bulli, New South Wales (the Bulli property) which the deceased bequeathed to John William Veale (now deceased) under her last will dated 4 December 2008, or out of the proceeds of sale of that property.
Order that the provision in order 1 above is paid by the earlier of:
(a) 90 days after the date of these orders; or (b) 14 days after completion of the sale of the Bulli property.
**********
And reiterated in by his Honour in subsequent cases, including Chapman v Ingold [2015] NSWSC 1604 at [115].
Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 at [62] (Sackville AJA, Macfarlan JA and Ward JA, as her Honour then was, agreeing).
I have excluded the monthly mortgage repayment for the Tullimbar property for which David was liable, but which the evidence disclosed was covered by the rental income from the property supplemented, when necessary, by funds that Zachary caused to be deposited in the St George bank account to which David has access, as referred to below.
Including the whole of the payment received from Baines Transport.
Chie
Veale [2025] NSWSC 1143
(2005) 221 CLR 191
(1962) 107 CLR 9
(2013) 85 NSWLR 253
Apparently assuming that letters of administration will be granted to her in due course, Vicky entered into a contract for sale of the property at 25 Park Road, Bulli, on 27 May 2023. The sale price is $1,995,000. Completion of the contract is not due until 14 days after title to the property is transferred to Vicky as administrator.
On 9 February 2024, the Court made an order pursuant to r 7.10 of the Uniform Civil Procedure Rules 2005 (NSW) appointing Vicky to represent the estate in these proceedings.
David seeks an order for provision in the form of a lump sum payment, which he submits should be an amount of at least $300,000 and up to $600,000, in lieu of his entitlement to a share of “any monies” under the will. Vicky contends that no further provision should be made in favour of David or, if the Court is satisfied that some further provision should be made, it should be in an amount of no more than $100,000.
In the present case, John’s intestate estate is the primary beneficiary of Shirley’s estate. Vicky, her three children, and John’s two children from his first marriage are the beneficiaries of John’s intestate estate pursuant to ss 113 and 127 of the Succession Act. The burden of any order for provision made in favour of David will therefore effectively fall on them. In those circumstances, as counsel for Vicky submitted, ss 60(2)(d) and 60(2)(p) of the Succession Act permit the Court to consider the financial circumstances and present and future financial needs of Vicky, her three children (Benjamin, Cassandra, and Sheree), and John’s two children from his first marriage (John and Jason), notwithstanding that they are not named as beneficiaries under Shirley’s will (except, in the case of the children, if John predeceased Shirley), and notwithstanding that they have not made their own applications for family provision out of Shirley’s estate: Estate of the Late Violet Eugenie Harrigan – Cowmey v Whibley [2012] NSWSC 291 at [22]-[47] (Ward J, as her Honour then was); Nicholas v Nicholas [2013] NSWSC 697 at [49]-[52] (Hallen J); Rakovich v Marszalek [2020] NSWSC 589 at [29]-[31] (Hallen J).
The following observations of Hallen J in Camernik v Reholc [2012] NSWSC 1537 [1] concerning the application of the principles and statutory provisions outlined above to family provision claims by an adult child of a deceased person have been referred to with approval in the Court of Appeal: [2]
Shirley and Peter Chie gave David and his wife, Michelle, $10,000 at some time before Peter died in April 2001. David and Michelle put that money towards the purchase of a home in Albion Park, where they continue to live today.
Shirley gave David, Marilyn and Diane $5,000 each some years ago when she received some funds as a result of the local council resuming a small piece of land. David does not know how much money Shirley gave to John on that occasion.
David’s other assets comprise superannuation of approximately $258,000, two motor vehicles with a combined value of approximately $22,000, and savings of approximately $1,800 (jointly with Michelle).
Shortly after Shirley died, Fay gave David the sum of $100,000. Both David and Fay gave evidence that the money was a loan, for David to repay when he is able to. Fay is not charging interest on the loan. She would like at least some of it to be repaid, as she may need that money herself, but she is not going to get upset about it if David can’t repay her. David wants to repay the loan. I accept David’s and Fay’s evidence that the payment was a loan. I reject the submissions made to the contrary on behalf of Vicky, which were based on a misunderstanding of Fay’s evidence.
At the time of the hearing, David was the registered owner of a property at Tullimbar, which was subject to a mortgage in favour of St George Bank securing the sum of $457,483 owing under a loan in David’s name. David considers that he holds that property on trust for his son, Zachary. The evidence given by David and Zachary, and the file of the solicitor who acted on the purchase of the property, establishes that Zachary had entered into a contract to purchase the property for $555,000. He was then charged with a criminal offence for which he was subsequently convicted and sentenced to imprisonment. As a result of his incarceration, Zachary could not obtain the loan that he required to complete the purchase. Zachary would have lost his deposit of $56,510 if he had been unable to complete the contract. In those circumstances, David took out a loan from St George bank in his own name and purchased the Tullimbar property, effectively as Zachary’s nominee. David’s loan was secured by mortgage over the property. David has leased the property to cover the mortgage and other expenses of the property. To the extent that there has been a shortfall between the rental income and the mortgage repayments other expenses, David has paid that shortfall using funds that Zachary caused to be deposited in a St George bank account which David opened in his own name but which he has operated in accordance with Zachary’s instructions and wishes. David has declared the rental income from the Tullimbar property as income in his own tax returns, and has claimed the expenses of the property as tax deductions. The evidence suggests that the Tullimbar property has increased in value since David became the registered proprietor.
David and Zachary were cross-examined at some length about the source of the various deposits that Zachary caused to be made into the St George bank account. The evidence elicited does not support an inference that the funds were David’s own funds, or funds that David was entitled to. On the contrary, the evidence established that David treated the funds in that account as Zachary’s funds, and made payments out of that account only to pay expenses associated with the Tullimbar property or to make other payments at Zachary’s request or with his approval.
Zachary was released from prison in November 2024. At the time of the hearing, he and David were making arrangements for the title to the Tullimbar property to be transferred from David to Zachary. Those arrangements included Zachary taking out a loan for $600,000 to finance the repayment of the amount owing by David under the existing loan secured by mortgage over the Tullimbar property, and to fund Zachary building a swimming pool on the property. There is no evidence that David will make any profit from having held the title to the property on behalf of his son. Zachary, rather than David, will benefit from the increase in the market value of the property since it was purchased.
Irrespective of whether the arrangement pursuant to which David became the registered proprietor of the Tullimbar property can properly be described as a trust, I find that it was an arrangement between father and son through which David assisted Zachary to avoid losing the deposit he had paid under his contract to purchase the property and to avoid losing his opportunity to complete the purchase. I accept the evidence of David and Zachary that David is now honouring that arrangement by transferring the Tullimbar property to Zachary in return for payment of an amount that is sufficient to repay the loan secured by the St George mortgage, and no more, so that Zachary rather than David benefits from the appreciation in the value of the Tullimbar property in the intervening years. The Tullimbar property is therefore not to be treated as part of David’s assets for the purpose of considering his financial circumstances. I reject Vicky’s submissions to the contrary.
David lives together with his wife, Michelle. Michelle is no longer working after being made redundant from her job as a kitchenhand at the University of Wollongong. Michelle has approximately $94,000 in her bank account, including her superannuation funds of $82,000.
I reject the submission made on behalf of Vicky that the evidence concerning David’s financial position is “quite opaque”. It emerged from evidence given by David under cross-examination that his schedule of assets and liabilities was prepared some time before he affirmed his 19 February 2024 affidavit to which the schedule was attached. It would have been preferable for David to prepare an updated schedule of assets and liabilities shortly before the hearing, to have obtained a market appraisal for his Albion Park property to inform his estimate of the value of that property, to have referred to the whole of the $93,291.84 payment from Baines Transport in his affidavit (rather than referring only to the $16,174.32 redundancy component and annexing his bank statements disclosing the whole of the payment), and to have provided some evidence explaining the basis on which the whole of that sum was paid to him by Baines Transport. When being cross-examined about those shortcomings in his evidence, David consistently answered to the effect that he understood that he was obliged to disclose his circumstances to the Court, but that he had not been asked to provide updated information or to include certain details in his affidavit. I formed the impression that the shortcomings to which I have referred were not caused by any desire or intention by David to withhold information about his financial circumstances. David answered the questions asked of him under cross-examination honestly to the best of his recollection without appearing to pay attention to the consequences of the answer for his claim.
I also reject the submission made on behalf of Vicky that David failed to explain the source of all of the deposits made into the St George bank account which David operated on behalf of Zachary. David’s evidence was that he did not use those funds for his own benefit. It is inherently probable that he did not pay much attention to the sources of the funds that were deposited into that account by family, friends and associates of Zachary for the use of Zachary. Counsel for Vicky cross-examined Zachary extensively about the identity of the persons who had paid those funds in. That cross-examination did not elicit any evidence suggesting that the funds might have been for the use and benefit of David rather than Zachary.
By the end of the hearing, the uncertainties that arose by reason of the shortcomings in David’s evidence had been resolved, and the Court had sufficient information to determine whether or not he had been left without adequate provision: Blendell v Blendell [2020] NSWCA 154 at [28]-[29] (Meagher JA, Gleeson and Leeming JJA agreeing).
David has had a heart attack, as a result of which he has two metal stents in his heart. David also had a blood clot in his leg, which blocked an artery. He has a metal stent in his leg to address this. He has been advised that blood clots could recur. David requires blood thinning medication and medication to manage blood pressure, diabetes and cholesterol.
David has gum disease and needs substantial dental work which is estimated to cost between $3,650 and $45,000. David cannot presently afford this.
David suffers from constantly aching hips from sitting in the driver’s seat of his truck, and shoulder pain from driving with the truck’s heavy steering wheel. In about April 2025, he was diagnosed with two hernias. He will require surgery, and a month off work to recover from it.
David would like to retire on account of his health issues, but considers that he needs to keep working. If he received some money, he would retire.
David would also like to carry out certain repairs to the Albion Park property where he lives with Michelle. There is no evidence of the estimated cost of the proposed repair works.
David would also like to purchase a caravan so that he and Michelle will be able to take relatively inexpensive holidays. He estimates that the caravan would cost approximately $80,000.
David would also like to have a fund for contingencies.
There is no other person liable to support David. He supports his wife, Michelle.
There is no suggestion that any aspect of David’s character, or any conduct on his part, before and after Shirley’s death, has any bearing on his family provision application.
In 2009, Vicky returned to the Philippines without John and the children. She remained there for about a year before returning to them.
Vicky did return in about 2010 and moved back into the Bulli property with Shirley, John and the children. It is not entirely clear from the evidence, but I assume that she resumed cleaning work at about that time.
Vicky moved out of the Bulli property permanently when she and John separated. According to Vicky’s evidence, this was in 2019. However, David gave evidence that John and Vicky were separated for the last five years of Shirley’s life, to the best of his recollection. When he visited Shirley at the Bulli property during that period – from 2017 to 2022 – Vicky was not there. I prefer David’s evidence, which is consistent with handwritten notes prepared by John in 2022, which state that he and Vicky had split up five years ago. Vicky annexed those notes to her affidavit affirmed on 19 March 2024.
After she moved out of the Bulli property, Vicky set up her own apartment and worked at Bulli Hospital full-time to support herself financially. John did not provide her with financial support.
In her affidavit affirmed on 19 March 2024, Vicky deposed that she contributed to Shirley’s wellbeing and to the maintenance of the Bulli property extensively, including by maintaining the household as a homemaker, and that she assisted John in looking after Shirley even after she moved out of the Bulli property. However, Vicky gave evidence under cross-examination that she did not ever return to the Bulli property after moving out following her separation with John, and that Shirley was quite capable of looking after herself at that time. I reject Vicky’s affidavit evidence on this subject.
To the extent that Shirley and Vicky’s relationship could be described as close in the earlier years, there is no evidence that it remained that way after Vicky moved out of the Bulli property in 2017.
In September 2022, Vicky began working as a cleaner at Wollongong Hospital on a full-time basis, earning approximately $1,250 net per week.
In her affidavit affirmed on 19 March 2024, Vicky deposed that cleaning work was extremely hard on her body, and that she had been diagnosed with arthritis in her left hand, high blood pressure, and plantar fasciitis in her right foot. Vicky had recently had 8 months off work due to tendon damage in her left wrist as a result of repetitive strain injury. Vicky deposed that she needed to undertake further education to re-train herself for employment that is less physically demanding.
By May 2025, Vicky was no longer working as a cleaner and had been employed in an administrative role with NSW Health at Wollongong Hospital. She was earning $897 net per week. As Vicky acknowledged under cross-examination, her injuries and health issues do not prevent her from doing this work, and it is likely she will be able to continue working in this sort of role until her pension age.
In her affidavit affirmed on 15 May 2025, Vicky deposed that her assets comprise approximately $5,000 in savings, a motor vehicle worth about $10,000, and jewellery to the value of about $10,000. Vicky also has superannuation of about $39,000 which she is not presently able to access. Vicky owes $32,665 to three different money lenders.
Vicky’s children live in their own homes and are no longer dependent on her financially.
No other person is liable to support Vicky.
Vicky gave evidence in her affidavits affirmed on 19 March 2024 and 15 May 2025 that she needs to buy a house, and that she is reliant on John’s estate receiving the gift from Shirley’s estate in order to do so. Vicky deposed that she would need between approximately $890,000 and $960,000 in order to purchase a small townhouse suitable for her, and a further $25,000 to fit out the interior and purchase new furniture. The estimated purchase price is based predominantly on townhouses with three bedrooms, although Vicky acknowledged in cross-examination that the two-bedroom unit she has been living in for the past three years is adequate for her. Vicky deposed that she also needs a contingency fund of about $50,000 and about $100,000 to top up her superannuation.
I will hear the parties in relation to costs.